There was a lot of talk about judicial activism during the confirmation hearing of Elena Kagan. Conservative senators expressing their standard outrage about the activism of liberal judges, liberal senators railing endlessly against the activism of the Citizens United decision. But in his statement in support of Elena Kagan this morning the committee will vote later today to send her nomination to the full Senate South Carolina Republican Lindsey Graham directed allegations of activism at his fellow senators.
Graham is the rare senator of either party who appreciates the deference that the Senate has historically provided to the president's judicial nominees. He doesn't care that Kagan is liberal or that he disagrees with her on a number of issues elections have consequences only that she's highly qualified and competent. That's no longer a common perspective among today's senators, and Graham called them out (in a southern, gentlemanly way) for politicizing the constitutional "advice and consent" role that they now regularly ignore.
"We are making history, all of us, because by your very time here you're getting to do something unusual and special. What are the consequences of our time in Senate? What are the precedents we are setting? Are we taking the language of the Constitution that stood the test of time, and basically putting a political standard in place of a Constitutional standard? Objectively speaking, things are changing, and they're unnerving to me."
The speech was so eloquent and persuasive that Illinois Democrat Dick Durbin, who spoke soon after, admitted that he now regrets how he'd handled Senate confirmation hearings for Republican nominees in the past. He went on to call Graham an "extraordinary senator," and with Graham's independent streak on full display today, Durbin is surely not the only Democrat who feels that way.
Update: The Senate Judiciary Committee voted 13-6 to send Kagan's nomination to the full senate. All Democrats and Lindsey Graham voted "aye."